International Law
History and Nature
Introduction
Where does international law come from and how it is made?
These are more difficult questions than one might expect and require considerable care.
In particular, it is dangerous to try transfer ideas from national legal systems to the very different context of international law.
There is no „Code of International Law”.
International law has no Parliament and nothing that can really be described as legislation.
The jurisdiction of international courts and
tribunals requires the consent of States.
Definition of International Law
In the Lotus case (1926), the Permanent Court of International Justice provided the following definition:
International law governs relations between independent states.
The rules of law binding upon them therefore emanate from their own will as expressed in
conventions established in order to regulate the relations between these co-existing
independent communities or with w view to the
achievement of common aims.
Definition of International Law
Public international law is a combination of rules and customs governing relations between
states in different fields, such as armed
conflict, human rights, the sea, space, trade, territorial boundaries, and diplomatic relations.
The United Nations Charter sets out the fundamental principles of modern public
international law, notably: promotion of human
rights; the strict limitation on the right to use
force against other states; the strict prohibition
on the acquisition of territory by force.
Subjects of international law
States are the primary subject of international law.
However, international law can also regulate the actions of other entities, namely:
international organisations, non-state actors (including national liberation movements and individuals), international non-governmental organizations, and multinational companies.
All can be defined as subjects of international
law, and can be considered as having legal
personality. This means that they have both
duties and rights provided for by international
law.
Private International Law
It is a set of rules of the domestic law of a State that is applicable when a legal issue contains a foreign element, and it has to be decided
whether a domestic rule should apply foreign law or relinquish jurisdiction to a foreign court.
The cases which give rise to the problem
concern mostly: divorce, care of children,
probate and contract.
The Nature of International law
The main argument against the existence of international law as „law” is that
international law does not have any
legislature, judiciary or executive within the usual understanding of these terms,
responsible for creation, interpretation and
enforcement of that law.
The Nature of International law
The most convincing argument in favour of existence of international law as law is that States recognise and observe international law with the consequence that there is
substantial order in international relations and that international law is practised on daily
basis by international lawyers,
intergovernmental organisations and other
non-state actors and applied by domestic and
international courts.
International law and municipal law
Public international law leaves each country to decide on relationship between international law and municipal law.
In this respect, there are two theories: dualist
and monist.
International law and municipal law
Dualism
The dualist doctrine considers international law and municipal law as two independent and separate
systems. It is based on the view that international law is the law applicable between the sovereign States and the municipal law applies within the State to regulate the activities of its citizens.
In order to be applied by national courts it is
necessary for the treaty to be incorporated into a State’s legal system. The incorporation of
international law by municipal law constitutes the
most important feature of the dualist doctrine.
International law and municipal law
Monism
Monism considers both international and municipal law to be part of the same legal order and emphasises the
supremacy of international law even within the municipal sphere.
According to Kelsen international law is supreme because it is a higher law than municipal law. Under this theory the unity between international law and municipal law means that international treaties automatically become law within a contracting State. They are directly
applicable. There is no need for incorporation of an
international treaty as it becomes an integral part of the national law of a State once the procedure for its
ratification is completed.
International law and municipal law
The general rule is that in the even of conflict between international and municipal law, the international prevails.
The Draft Declaration on Rights and Duties of States (1949) in its Article 13 states that: Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not
invoke provisions in its constitutions or its laws
as an excuse not to perform this duty.
International law and municipal law
In respect of international treaties, Article 27
Vienna Convention on the law of Treaties (VCLT) states: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
A State cannot rely upon the provisions or
deficiencies of its municipal law to avoid its
obligations under international law.
Enforcement of International Law
Methods of enforcement of international law
differ from those available under municipal law because international law does not have all the attributes of municipal law i.e. there is no
legislature, judiciary or executive.
A State obeys international law because:
a)
It want to maintain its good reputation;
b)
It fears retaliatory measures or measures
based on reciprocity that may be taken by a
victim State;
Enforcement of International Law
c) The UN Security Council (UNSC) may take various of measures, including the use of force under Chapter VII of the UN Charter to force a State to comply with international law;
d) It is bound under many international treaties to accept the compulsory jurisdiction and the
judgements of a body established by a treaty to deal with disputes arising out of it;
e) It fears public opinion both home and abroad.
Enforcement of International Law
Measures may be taken against a State:
a)
non-forcible measures: diplomatic sanctions, economic and other sanctions not involving the use of force;
b)
forcible measures: the UNSC under Article 42 of the UN Charter may authorise the use of force against a State.
Measures may be taken against a person: may be
brought before the International Criminal Court (ICC) or other international criminal courts; the UNSC may
impose sanctions against a person or an identified
group of persons; a State may impose sanctions such as confiscation of assets, fines and imprisonment on a
person.
Sanctions in International law
In legal jargon the term ‘sanctions’ is equally used to designate restrictive measures that an individual State or international organization chooses to take against another State or organisation.
In this broad acceptation the word ‘sanctions’
designates all types of consequences triggered by the violation of an international legal rule. These consequences range from a series of soft, and social reactions, such as pressures from public
opinion, and name-and-shame politics, to a variety
of organized effects attached to the non-respect of
a legal rule.
Sanctions in International law
Chapter VII envisages two categories of
enforcement measures: Art. 41 covers measures
‘not involving the use of armed force’, while Art.
42 authorizes the Security Council to use the coercive military force ‘to maintain or restore international peace and security’.
The two mechanisms: whereas the economic
sanctions of Art. 41 are intended to coexist with
similar unilateral measures taken by States (or
other international organizations), the measures
of Art. 42 come within the exclusive competence
of the Security Council. They are a substitute for
the unilateral use of force.
Economic Sanctions
Article 41 then provides that: ‘The Security Council may decide what measures not
involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. They may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of
diplomatic relations’.
Economic Sanctions
Sanctions take a variety of forms, including
travel bans, asset freezes, arms embargoes,
capital restraints, foreign aid reductions, and
trade restrictions.
Jus cogens
There is no formal hierarchy within IL as a whole, there are some hierarchical elements. One of
them is jus cogens, a legal category that can be found in the Vienna Convention on the Law of Treaties (VCLT).
Jus cogens (from Latin: compelling law; from English: peremptory norm) refers to certain fundamental, overriding principles of
international law.
Jus cogens
Article 53 Vienna Convention on the law of
treaties, defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law.
Jus cogens overrides conflicting norms, creates
normative hierarchy.
Jus cogens
Prohibition of aggression, slavery, genocide, racial discrimination, crimes against
humanity, torture, the right to self-
determination, basic rules of international
humanitarian law, prohibition of piracy.
Article 103 of the UN Charter
In the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations
under the present Charter shall prevail.
Fundamental principles governing International Relations
Principles are intend to serve as a basic guidelines for the life of the whole
international community.
They may be regarded as the constitutional principles of international community.
The sovereign equality of States; non-
intervention in the internal or external affairs
of other States; prohibition of the treat or use
of force; respect for human rights.
Fundamental principles governing International Relations
Peaceful settlement of disputes. The UN
Charter in Article 2(3) obliges member States to settle their international disputes
peacefully. They must try the various means and procedures laid down there: negotiation, mediation, conciliation, resort to arbitral or judicial mechanism. While trying to settle the dispute peacefully, States are obliges to
refrain any action which may aggravate the
situation so as to endanger the maintenance
of international peace and security.
Specialist areas of International Law
The International Law of the Sea.
International Trade Law.
International Environmental Law.
International Humanitarian Law.
International Human Rights Law.
International Criminal Law.
Aide-mèmoire: key dates in the development of international law
1648. The conclusion of the treaty of
Westphalia, which ended religious wars in Europe, is often referred to as the
constitutional treaty of Europe.
It recognised the principle of sovereignty,
territorial integrity, the equality of States, and recognised that a ruler has the right to impose his chosen religion on his subjects although
some protection was guaranteed for religious
minorities.
Aide-mèmoire: key dates in the development of international law
1815. The Congress of Vienna which ended the Napoleonic wars established a new
political balance of powers intended to ensure stability, peace and the status quo in Europe.
It was based on sovereignty, balance of powers, legitimacy, and equality between nations.
It codified the law on diplomatic agents and
missions, created the institution of permanent
neutrality (e.g. in respect of Switzerland) and
created the Concert of Europe, as means of
enforcing its decisions.
Aide-mèmoire: key dates in the development of international law
1919. The League of Nations and the
permanent Court of International justice (PCIJ) were established under the auspices of the
1919 Peace Conference.
The League of Nations was the first universal intergovernmental organisation open to any State.
Its main objectives were to maintain peace
and security, protect minorities and supervise the mandate system.
The PCIJ was the first permanent world court ever created by the international community open to all states with jurisdiction over all
international disputes.
Aide-mèmoire: key dates in the development of international law
1945. The creation of the United Nations (UN).
The purposes of the UN are: to maintain
international peace and security; to develop
friendly relations among nations; to achieve
international co-operation in solving common
international problems of an economic, social,
cultural or humanitarian nature; to be a centre
for harmonising the actions of nations in the
attainment of these common ends.
Aide-mèmoire: key dates in the development of international law
1989-1991. The period from the fall of the Berlin Wall (7 November 1989) to the official dissolution of the Soviet Union (31 December 1991) is considered as the end of the Cold
War.
International Law Commission
Studies topics for possible codification, such as: State responsibility, Law of Treaties,
Regime of territorial waters, etc.
Summary
International law comprises a system of rules and principles that govern the international relations between sovereign States and other institutional subjects of international law.
It operates alongside international diplomacy, politics and economics.
The international law is a system of law, that its subjects recognise that there exists a set of rules binding upon them as law. Subjects
believe international law exists.
Summary
It is a Law of Co-ordination, which main objective is to keep its subjects peacefully apart and to
organize unilateral or common action where an issue cannot be managed effectively by each subject alone.
The basic presumption of the law of coordination is that all subjects are equally sovereign.
States are the dominant actors in international relations.
This system is based upon the assumption that
what is not prohibited is permitted.
Summary
It is the Law of Co-operation. The obligation to co-operate, as set out in Art. 1 (1) and (3) UN Charter, entails co-operation among States, and co-operation with the UN in the
maintenance of international peace and security, as well as in the solving of
international problems of an economic, social, cultural, or humanitarian character.
The duty to co-operate means the obligation
to enter into such co-ordinated action so as to
achieve a specific goal.
Summary
The Legitimacy of International Law: it rests in the consent of their subjects.
